While the EEOC and Seventh Circuit have adopted the view that, because sexual orientation is inherently a sex-based consideration, an allegation of discrimination based on sexual orientation is an allegation of sex discrimination under Title VII, the Sixth Circuit has not, a federal district court in Ohio explained, dismissing a gay employee’s claim that his employer discriminated against him on account of his sexual orientation. His federal and state-law retaliation claim was dismissed in part (Grimsley v. American Showa, Inc., August 21, 2017, Rice, W.).

When the employee, who had been assigned to the employer’s plant through a temporary agency, applied for a full-time job, he falsely stated on his application that he had graduated from a community college. Hired as a senior training specialist, he received an excellent performance review several months later. He claimed, however, that shortly after he was hired, a coworker began making disparaging comments about his sexuality and his partner, an African-American male. Another worker purportedly stopped speaking to him upon learning he was gay. Although the employee complained, no action was taken.

Fired. The employee was subsequently transferred to a new department where, he alleged, his supervisor took away his management authority over a male subordinate because she did not think he could be objective—a comment he claimed was directed at his sexual orientation. He again complained to management and asked to be transferred back to his old department. Instead, he was fired for falsifying his job application. He then sued, alleging retaliation in violation of Title VII and the Ohio Revised Code and sex discrimination in violation of Title VII.

Sex discrimination. The employee alleged the employer discriminated against him “on account of his sexual orientation/gender identity” by terminating him “because of his sexual orientation and treating him less favorably than non-homosexual coworkers.” Pointing out that Title VII protects individuals from harassment for failure to conform to traditional sex stereotypes, the court cited the Sixth Circuit’s 2004 Smith v. City of Salem decision, in which it held that “[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination” and it subsequent decision, in Vickers v. Fairfield Med. Ctr., holding that discrimination based on sexual orientation alone is not actionable under Title VII.

Moving to dismiss the employee’s sex discrimination claim, the employer argued he did not allege he was discriminated against because he failed to conform to traditional gender stereotypes. The employee, however, countered that heterosexuality is the most central of gender norms, based on the presumption he should be attracted to women, not men. Noting that the EEOC, and most recently the Seventh Circuit, in Hively v. Ivy Tech Cmty. Coll. of Ind., have adopted the view that an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII, the court pointed out that none of this authority is binding in the Sixth Circuit.

And while the Sixth Circuit has acknowledged that there may be a change underway in this area of the law and that it is difficult to discern “the line between discrimination based on gender-non-conforming characteristics that supports a sex-stereotyping claim and discrimination based on sexual orientation,” Vickers, observed the court here, remains controlling law until overruled by the entire Sixth Circuit or until the U.S. Supreme Court rules otherwise. Thus, because the employee did not allege he was discriminated against because he failed to conform to traditional gender stereotypes in an observable way, his claim was dismissed with leave to amend.

Retaliation. The court also dismissed that portion of his retaliation claim in which he alleged he was terminated after complaining of harassment and discrimination based on his sexual orientation. Because the conduct he complained of was not an unlawful employment practice, he failed to state a cognizable claim.

As to his allegation that he was fired after complaining about harassment and discrimination based on the race of his partner, the employer argued that the employee’s false statement on his employment application defeated any claim of retaliation. Disagreeing, the court observed that the employee alleged all facts necessary to establish a prima facie case of retaliation. And while his admitted falsification of his application could help the employer proffer a legitimate, nonretaliatory reason for the termination, it did not necessarily foreclose a finding of pretext.

Finding the allegations in the complaint gave rise to an inference that the falsification did not actually motivate the discharge, the court pointed out that shortly after the employee’s first complaint of harassment, he was transferred. And just six days after his second complaint, the employer launched an investigation and terminated him. Noting he alleged that a college degree was not required for his job, the court observed that it could also be argued his false statement was insufficient to motivate the discharge. Accordingly, this portion of his retaliation claim survived dismissal.

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